Friday, June 20, 2008

Where the law ends

This is a piece I wrote back in 2006, I thought I'd pull it out of the archives as the "compromise" reworking of FISA law is in the news these days.

“Where law ends, tyranny begins” ~William Pitt, 1770

By now most people familiar with the the Bush administration NSA spying controversy have heard the campaign quote. President Bush assures voters that “nothin’ has changed,” that Constitutional safeguards are in place. When “we’re talkin’ ‘bout monitoring al Qaeda we’re talkin’ ‘bout gettin’ a warrant!” On the campaign stump the president felt it was important to assure the people that their executive branch still honored the Constitution. That was the Spring of 2004. We now know, courtesy of the president’s own reluctant admissions, that he was lying. We know that early in the aftermath of September 11th the president authorized warrantless surveillance of Americans and that he has continued the practice throughout his presidency. We know that he continues the practice to this day. What he once denied, he now justifies.

The president and his administration now argue that the post 9/11 congressional resolution to use force and any “necessary” means to pursue al Qaeda granted him license to ignore standing federal law such as the Federal Intelligence Security Act and the Constitutional guarantees against unlawful search. We are assured that these searches are only against bad people doing bad things and that we can trust them on that. When confronted with the enabling provisions of FISA law they counter that the court process, though secret and historically permissive towards national security efforts, is still too cumbersome and inflexible. There are times this law is simply inconvenient.

Oddly this is not what a key Justice Department official claimed when he testified before Congress in July of 2002. At the time FISA law was being examined in light of the newly begun War On Terror. Republican Senator Mike DeWine had offered legislation to adjust requirements of FISA with regard to warrants. DeWine's proposal was to lower the "probable cause" standard to one of only "reasonable suspicion" for warrants involving foreigners in the country. James A. Baker, the Justice Department's top lawyer on intelligence policy testified that there was essentially no need to do so. FISA was functioning as it was intended. Baker enthused that congressional approval of the USA Patriot Act had allowed investigators "to use our expanded FISA tools more effectively to combat terrorist activities." To offer a paraphrase, his response was basicly “Thanks but no thanks, Senator. We’re good.”

There are two explanations for this response, the first being that Baker was uninformed and unaware of the ongoing extralegal spy program made necessary by “cumbersome and inflexible” FISA law. The second explanation is that he was aware and was instructed to lie.

Let’s take this a few months forward to October of 2002 and the Joint House And Senate Select Intelligence Committee investigating September 11th. Then and there NSA chief General Michael Hayden was questioned on NSA counterterrorism efforts as they relate to FISA law. Again, with the NSA spying program well underway “back at the office” Hayden assured congress that FISA law was being observed. He went so far as to carefully outline the changing legal standing of surveillance on hypothetical terrorists as they crossed over into U.S. territory. He clearly stated his understanding of “the protections...the law defines.” In response to Hayden’s narrative, Congressman Porter Goss, now the Director of the CIA, warmly observed “I’m not sure everybody in this country understands just how many safeguards we have for American liberties. And I think it’s very important to underscore that.”

It is less likely that General Hayden was uninformed and unaware of the ongoing NSA spy program in October 2002. It is much more likely that he was aware and was instructed to lie.

In it’s current defense of NSA spying the administration insists that its conduct has been carefully scrutinized from the outset by “the highest legal authorities.” By the president’s own account, Justice was well informed of the program in July of 2002 when James A. Baker was offering Congress his assessment of a healthy, functioning and effective marriage between FISA and The USA Patriot Act. Perhaps James A. Baker wasn’t actively lying himself. Perhaps he wasn’t aware of the NSA program as he offered testimony before Congress. What we have to conclude however is that the Bush Justice Department was lying institutionally. In effect the Congress was willfully misinformed by the Bush administration Justice Department. Answering to a United States Senate committee, they either sent someone strategicly uninformed, or they sent someone instructed to lie.

General Hayden’s subsequent opacity and misinformation before Congress might be excused as the loyalty of a soldier to his commander in chief. Unfortunately that commander in chief had put the general in a position where his loyalty opposed to the rule of law held and cherished by the American people.

That George Bush was lying on the campaign trail about domestic spying apparently hasn’t shocked anyone. Sadly that sort of thing has come to be expected of the Bush administration, even of political speech in general. There are those who would shrug and say “they all lie!” But there is something a bit more dangerous going on here. Because the lies we are confronting now aren’t the lies of an embarrassed politician trying to hide his flaws or wiggle out of a broken promise with parsed definitions of past statements. What we are looking at here is a White House where deceit has become a matter of public policy, where disinformation has become deliberate and systemic, where Congress and the American people are being played for the fool.

The president’s latest defense of his administration’s domestic spying is basic. It resorts to fear. We cannot afford to hold him accountable, he argues, “this program is so sensitive and so important that if information gets out to how we run it or how we operate it, it'll help the enemy."

The Foreign Intelligence Surveillance Act came about in the aftermath of a Nixon presidency that had vividly demonstrated the danger of unchecked presidential authority. Under Nixon and, yes, and in a time of war, the rationale of national security had been used to justify executive branch abuses that ran from spying on peace activists all the way to the famous misadventures in The Watergate Hotel. FISA was designed to provide the necessary secrecy for national security surveillance while exacting a minimum of court scrutiny for approval as a check against abuse.

The Bush White House was extended an invitation to revisit and revise this law in light of the new reality of The War On Terror. It chose not to. It opted to quietly, in fact secretly, disregard the law instead.

It is worth noting that The Constitution and The Bill Of Rights also came about in times of violence and instability. Together they served to establish a system of government for this country with certain core principles meant to stand in peace and in peril just the same. The system of checks and balances established there in those cherished documents isn’t the set of rules for a trivial game that can be put aside at the convenience of any man or administration. They are most important to us in times of trial. Despite a trail of lies President Bush not only asks but presumes to insist that we trust him as he disregards inconvenient law.

Thomas Jefferson suggested a response a long time ago. “In questions of power... let no more be heard of confidence in men, but bind him down from mischief by the chains of the Constitution.”

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